Freedom of Religion and the Prohibition of Religious Discrimination

In the recent case of Eweida and Others v United Kingdom App nos. 48420/10, 59842/10, 51671/10 and 36516/10 (ECHR, 15 January 2013), the European Court of Human Rights published the long-awaited judgment in relation to four practicing Christians. All four felt that they could not express their Christian faith at work and claimed that their freedom of religion and freedom from religious discrimination were violated. In January 2013, their claims were taken to Strasbourg, which ruled with differing results. The European Court of Human Rights held in favour of one employee, Ms Eweida, a former British Airways employee, whilst it held that the other three employees who also brought religious discrimination claims against their employers failed to prove that UK law had not adequately protected their rights to freely manifest their religion.

The cases

Eweida v British Airways Plc [2010] EWCA Civ 80 involved Ms Eweida, who was a member of the check-in staff who wished to openly wear a silver cross as her religious symbol. This was a breach of British Airways’ new uniform policy. As a result of the prohibition of the cross, she was transferred to a position which did not entail her wearing the new uniform. She refused this post and from September 2006 until February 2007 she remained at home, receiving no salary. After a series of media reports in 2006 about the case, British Airways eased the restrictions in February 2007 and permitted her to visibly wear her cross.

The European Court of Human Rights held in favour of one employee, Ms Eweida, a former British Airways employee…

In Chaplin v Royal Devon & Exeter NHS Foundation Trust ET/1702886/09, Shirley Chaplin, who was a nurse, was prohibited from wearing her cross necklace after the introduction of a new uniform policy which made necklaces more visible, on the ground of the ‘risk of injury when handling patients’. The rule was that any member of staff who wished to wear a particular religious item had to raise the issue with the manager who would not unreasonably withhold approval. When requested, Ms Chaplin also refused to remove her cross and as a result was transferred to a non-nursing position.

Ladele v London Borough of Islington [2009] EWCA Civ 1357 concerned a registrar, Ms Ladele, who refused on grounds of conscience to perform civil partnership ceremonies. When the London Borough of Islington insisted that she should undertake at least some of these duties and disciplined her, as well as threatening her with dismissal, she claimed that she had suffered discrimination on the grounds of religion and belief. The Borough operates equality and diversity policies which outlaw discrimination on the grounds of sexual orientation. Since the Civil Partnership Act 2004, the registration of civil partnerships between two people of the same sex has been legal in the UK. Initially, Ms Ladele was allowed to make informal arrangements with colleagues to exchange work so that she did not have to conduct civil partnership ceremonies. However, two colleagues complained that her refusal to carry out such duties was discriminatory. Subsequently, Ladele was informed by the local authority that refusing to conduct civil partnerships put her in breach of the Code of Conduct and of the equality policy.

In McFarlane v Relate Avon Ltd [2010] EWCA Civ 771, Mr McFarlane was a relationship counsellor who refused to counsel same-sex couples on sexual matters as he held a ‘deep and genuine belief that the Bible states that homosexual activity is sinful and that he should do nothing which directly endorses such activity’. Relate was a member of the British Association for Sexual and Relationship Therapy, following a Code of Ethics and Principles of Good Practice which established that a therapist ‘must be aware of his or her own prejudices and avoid discrimination, for example on grounds of religion, race, gender, age, beliefs, sexual orientation, disability’. Thus, he was suspended and eventually dismissed.

The arguments

In all cases, the question which arose was whether the prevention from freely manifesting the claimants’ religion was an interference with Article 9 of the European Convention on Human Rights, and, if so, whether a fair balance was struck between their rights and the rights of others. When considering the proportionality of the steps taken by British Airways to enforce its uniform code, national judges at each level mutually held that the aim of the uniform code was legitimate; namely, to communicate a certain corporate image of the company and to promote recognition of its brand and staff. On the other hand, the employment tribunal stated that the code was disproportionate as it failed to differentiate between an item worn as a religious symbol and an item worn purely for decorative reasons. This was reversed by the Court of Appeal which held that the code was proportionate. It found the following:

The uniform code had been in force for a considerable number of years, and indicated no known problems to the applicant or any other member of staff.

Ms Eweida triggered a formal grievance complaint but decided to arrive at work displaying her cross, without waiting for the results of the procedure.

The complaint was appropriately addressed by British Airways once lodged, which involved a consultation process and the relaxation of the code to permit the wearing of visible religious symbols.

Ms Eweida was offered an administrative post on identical pay during the process, and in February 2007, she reacquired her old job.

When the European Court of Human Rights (ECtHR) stepped in, they concluded that a fair balance had not been struck. On one side was Ms Eweida’s desire to manifest her religious belief, as this is a fundamental right because a healthy democratic society needs to tolerate and sustain pluralism and diversity, and on the other side was the employers’ wish to project a certain corporate imagine. This aim was undoubtedly disproportionate and the domestic courts had accorded it too much weight. The ECtHR held that Ms Eweida’s cross was discreet and cannot have interfered with her professional appearance. There was no evidence that the wearing of other, previously authorised, religious clothing such as the turban or the hijab by other employees had any negative impact on British Airways’ brand of image. In particular, the fact that British Airways was able to amend the uniform code to allow for the visible wearing of the cross and other religious symbols demonstrated that the earlier provision was not of crucial importance in the first place.

In contrast, the ECtHR in Ms Chaplin’s case held that the restriction on her cross was to protect the health and safety of nurses and patients. The applicant managers considered that there was a risk that a patient may seize and pull the chain, thereby injuring themselves or the employee, or that the cross may come into contact with an open wound. Further key points were that there was evidence that another Christian nurse had been requested to remove a cross and chain, and that two Sikh nurses were banned from wearing bangles or kirpan, and flowing hijabs were also prohibited. Lastly, Ms Chaplin was offered the possibility of wearing a cross in the form of a brooch attached to her uniform or tucked under a high-necked top worn under her tunic, but she refused to consider this option and stated that it would not sufficiently comply with her religious conviction.

The Court of Appeal in Ladele stated that the Council’s policy decision to assign all registrars as civil partnership registrars had a legitimate aim, which fulfilled the Council’s policy to tackle discrimination on grounds of sexual orientation. The aim of the Council’s Dignity for All policy was of general significance having fundamental human rights, equality and diversity implications. The effect of the implementation of the policy on Ladele did not violate her religious beliefs; she remained free to hold them and worship as she wished. In addition, Ladele was employed in a public job and was required to perform a purely secular task, as part of her job.

In contrast, the ECtHR in Ms Chaplin’s case held that the restriction on her cross was to protect the health and safety of nurses and patients.

Similarly, in McFarlane, although Mr McFarlane had been disadvantaged, Relate’s actions had a legitimate aim (again, the aim of excluding discrimination on the grounds of sexual orientation) and this was proportionate. The Court of Appeal and the Employment Appeal Tribunal found Ladele to be definitive on this point.

Judgment of the European Court of Human Rights

The Strasbourg court held in relation to Ms Eweida that there was no evidence of any interference with the rights of others, and that the domestic courts failed to appropriately implement the Human Rights Act to protect Ms Eweida’s right to express her religion. Although British Airways possessed a legitimate aim in implementing the uniform code, the UK gave it too much weight given the lack of evidence towards the detrimental effect on British Airways’ image, and as a result breached Article 9.

The ECtHR did not find in favour of Ms Chaplin as the reason for requesting that she remove the cross was on the grounds of health and safety on the hospital ward, which was of a greater magnitude than that which applied in respect of Ms Eweida. Furthermore, this is a field where the domestic authorities must be allowed a wide margin of appreciation. The hospital managers were in a better position to make decisions about clinical safety than a court, particularly an international court which heard no direct evidence.

… this is a field where the domestic authorities must be allowed a wide margin of appreciation. The hospital managers were in a better position to make decisions about clinical safety…

In relation to Ms Ladele and Mr McFarlane, the ECtHR held in favour of the domestic courts. It held that the differences in treatment based on the sexual orientation of individuals required serious reasons by way of justification, and similarly with the judgment of Ms Chaplin, the domestic courts should be entitled to a wide margin of appreciation. In both cases, the ECtHR did not consider that this margin had been exceeded, and that their rights under Article 9 had not been violated. As Laws LJ noted, the two cases ‘cannot sensibly be distinguished’.

Conclusion

As these cases show, the assessment of religious rights in employment is always going to be highly dependent upon the surrounding circumstances. The European Court’s desire to protect an employee’s religious belief is evident in situations where the Human Rights Act no longer provides that protection. Nevertheless, this partial victory on the part of Ms Eweida means that employers will need to pay particular attention in relation to uniform policies which may limit an employee’s religious rights. If the faith is incompatible with the actual conduct of work and an exception would discriminate against other employees, there might be no other solution than to leave the company.

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